A. No certificate may be issued unless the Commissioner has determined that a public need for the project has been demonstrated. If it is determined that a public need exists for only a portion of a project, a certificate may be issued for that portion and any appeal may be limited to the part of the decision with which the appellant disagrees without affecting the remainder of the decision. Any decision to issue or approve the issuance of a certificate shall be consistent with the most recent applicable provisions of the State Health Services Plan; however, if the Commissioner finds, upon presentation of appropriate evidence, that the provisions of such plan are not relevant to a rural locality's needs, inaccurate, outdated, inadequate or otherwise inapplicable, the Commissioner, consistent with such finding, may issue or approve the issuance of a certificate and shall initiate procedures to make appropriate amendments to such plan. In cases in which a provision of the State Health Services Plan has been previously set aside by the Commissioner and relevant amendments to the Plan have not yet taken effect, the Commissioner's decision shall be consistent with the applicable portions of the State Health Services Plan that have not been set aside and the remaining considerations in subsection B.
B. In determining whether a public need for a project has been demonstrated, the Commissioner shall consider:
1. The extent to which the proposed project will provide or increase access to health care services for people in the area to be served and the effects that the proposed project will have on access to health care services in areas having distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to health care;
2. The extent to which the proposed project will meet the needs of people in the area to be served, as demonstrated by each of the following: (i) the level of community support for the proposed project demonstrated by people, businesses, and governmental leaders representing the area to be served; (ii) the availability of reasonable alternatives to the proposed project that would meet the needs of people in the area to be served in a less costly, more efficient, or more effective manner; (iii) any recommendation or report of the regional health planning agency regarding an application for a certificate that is required to be submitted to the Commissioner pursuant to subsection B of § 32.1-102.6; (iv) any costs and benefits of the proposed project; (v) the financial accessibility of the proposed project to people in the area to be served, including indigent people; and (vi) at the discretion of the Commissioner, any other factors as may be relevant to the determination of public need for a proposed project;
3. The extent to which the proposed project is consistent with the State Health Services Plan;
4. The extent to which the proposed project fosters institutional competition that benefits the area to be served while improving access to essential health care services for all people in the area to be served;
5. The relationship of the proposed project to the existing health care system of the area to be served, including the utilization and efficiency of existing services or facilities;
6. The feasibility of the proposed project, including the financial benefits of the proposed project to the applicant, the cost of construction, the availability of financial and human resources, and the cost of capital;
7. The extent to which the proposed project provides improvements or innovations in the financing and delivery of health care services, as demonstrated by (i) the introduction of new technology that promotes quality, cost effectiveness, or both in the delivery of health care services; (ii) the potential for provision of health care services on an outpatient basis; (iii) any cooperative efforts to meet regional health care needs; and (iv) at the discretion of the Commissioner, any other factors as may be appropriate; and
8. In the case of a project proposed by or affecting a teaching hospital associated with a public institution of higher education or a medical school in the area to be served, (i) the unique research, training, and clinical mission of the teaching hospital or medical school and (ii) any contribution the teaching hospital or medical school may provide in the delivery, innovation, and improvement of health care services for citizens of the Commonwealth, including indigent or underserved populations.
1982, c. 388; 1984, c. 740; 1993, c. 704; 1999, c. 926; 2000, c. 931; 2004, cc. 71, 95; 2008, c. 292; 2009, c. 175; 2020, cc. 227, 558, 1271.
Notes of Decisions
Johnston-Willis, Ltd. v. Kenley, 369 S.E.2d 1 (Va. Ct. App. 1988).
· cites it 21× “Code § 32.1-102.3. Under Virginia’s Health Care Planning law, before certain projects may be commenced, a medical care facility shall first obtain a CON issued by the Commissioner.”
Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 659 S.E.2d 561 (Va. Ct. App. 2008).
· cites it 42× “Subsection A of the 2005 Relocation Act reinforces the point by making equally clear that the Department shall process the request "[n]otwithstanding" Code § 32.1-102.3. That statute requires "projects" to be supported by a showing of public need and details the multitude of…”
Reston Hosp. Ctr., LLC v. Remley, 717 S.E.2d 417 (Va. Ct. App. 2011).
· cites it 22× “Reston principally argues that it has standing to appeal under the Virginia Administrative Process Act (“VAPA”) because Code § 32.1-102.3 required the Commissioner to consider the impact that the issuance of the certificate would have on the utilization and efficiency of…”
Chippenham & Johnston-Willis Hospitals, Inc. v. Peterson, 553 S.E.2d 133 (Va. Ct. App. 2001).
· cites it 19× “The circuit court concluded that the Commissioner’s interpretation of Va.Code § 32.1-102.3 as giving [her] discretion in determining the degree to which a COPN application must be, or may not be, consistent with the SMFP is a correct interpretation of that statute.”
Roanoke Mem'l Hospitals v. Kenley, 352 S.E.2d 525 (Va. Ct. App. 1987).
· cites it 16× “The Commissioner and Lewis-Gale contend that the provision for 6,000 treatment visits under the State Health Plan is not absolute, but simply a guideline to aid the Commissioner in his consideration of the twenty criteria set forth in Code § 32.1-102.3 for determining whether a…”
Loudon Hosp. Ctr. v. Robert B. Stroude, M.D., 650 S.E.2d 879 (Va. Ct. App. 2007).
· cites it 6× “3(A), which provides in pertinent part: “Any decision to issue or approve the issuance of a certificate shall be consistent with the most recent applicable provisions of the State Medical Facilities Plan (“SMFP”).” Specifically, LHC argues that the decision was not consistent…”
State Health Comissioner v. Sentara Norfolk Gen. Hosp., 534 S.E.2d 325 (Va. 2000).
· cites it 12× “On July 31, 1996, Sentara Norfolk General Hospital (Sentara) submitted an application for a COPN pursuant to Code § 32.1-102.3 to establish a liver transplant facility in Norfolk.”
Sentara Norfolk Gen. Hosp. v. State Health Comm'r, 516 S.E.2d 690 (Va. Ct. App. 1999).
· cites it 10× “Any decision to issue or approve the issuance of a certificate shall be consistent with the most recent applicable provisions of the State Medical Facilities Plan; however, if the Commissioner finds, upon presentation of appropriate evidence, that the provisions of such plan are…”
Loudoun Hosp. Ctr. v. Stroube, 650 S.E.2d 879 (Va. Ct. App. 2007).
· cites it 6× “3(A), which provides in pertinent part: "Any decision to issue or approve the issuance of a certificate shall be consistent with the most recent applicable provisions of the State Medical Facilities Plan ("SMFP")." Specifically, LHC argues that the decision was not consistent…”
Va Dept. of Health v. Nrv Real Est., LLC, 677 S.E.2d 276 (Va. 2009).
· cites it 4× “Under this system, Code § 32.1-102.3(A) provides, in pertinent part, that "[n]o person shall commence any project" without obtaining a COPN from the State Health Commissioner.”
Bio-Med. Applications of Arlington, Inc. v. Kenley, 358 S.E.2d 722 (Va. Ct. App. 1987).
· cites it 4× “In the present case, we reject Bio-Medical’s argument that the Commissioner erred in failing to make specific findings on all twenty factors which he is required to consider under Code § 32.1-102.3(B). While that statute requires the Commission to consider all twenty factors, it…”
— Va. Code Ann. § 32.1-102.3(A) — 25 cases
Johnston-Willis, Ltd. v. Kenley, 369 S.E.2d 1 (Va. Ct. App. 1988).
“Code § 32.1-102.3. Under Virginia’s Health Care Planning law, before certain projects may be commenced, a medical care facility shall first obtain a CON issued by the Commissioner.”
Chippenham & Johnston-Willis Hospitals, Inc. v. Peterson, 553 S.E.2d 133 (Va. Ct. App. 2001).
“The circuit court concluded that the Commissioner’s interpretation of Va.Code § 32.1-102.3 as giving [her] discretion in determining the degree to which a COPN application must be, or may not be, consistent with the SMFP is a correct interpretation of that statute.”
Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 659 S.E.2d 561 (Va. Ct. App. 2008).
“Subsection A of the 2005 Relocation Act reinforces the point by making equally clear that the Department shall process the request "[n]otwithstanding" Code § 32.1-102.3. That statute requires "projects" to be supported by a showing of public need and details the multitude of…”
Roanoke Mem'l Hospitals v. Kenley, 352 S.E.2d 525 (Va. Ct. App. 1987).
“The Commissioner and Lewis-Gale contend that the provision for 6,000 treatment visits under the State Health Plan is not absolute, but simply a guideline to aid the Commissioner in his consideration of the twenty criteria set forth in Code § 32.1-102.3 for determining whether a…”
— Va. Code Ann. § 32.1-102.3(B) — 21 cases
Johnston-Willis, Ltd. v. Kenley, 369 S.E.2d 1 (Va. Ct. App. 1988).
“Code § 32.1-102.3. Under Virginia’s Health Care Planning law, before certain projects may be commenced, a medical care facility shall first obtain a CON issued by the Commissioner.”
Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 659 S.E.2d 561 (Va. Ct. App. 2008).
“Subsection A of the 2005 Relocation Act reinforces the point by making equally clear that the Department shall process the request "[n]otwithstanding" Code § 32.1-102.3. That statute requires "projects" to be supported by a showing of public need and details the multitude of…”
Reston Hosp. Ctr., LLC v. Remley, 717 S.E.2d 417 (Va. Ct. App. 2011).
“Reston principally argues that it has standing to appeal under the Virginia Administrative Process Act (“VAPA”) because Code § 32.1-102.3 required the Commissioner to consider the impact that the issuance of the certificate would have on the utilization and efficiency of…”
Roanoke Mem'l Hospitals v. Kenley, 352 S.E.2d 525 (Va. Ct. App. 1987).
“The Commissioner and Lewis-Gale contend that the provision for 6,000 treatment visits under the State Health Plan is not absolute, but simply a guideline to aid the Commissioner in his consideration of the twenty criteria set forth in Code § 32.1-102.3 for determining whether a…”
Bio-Med. Applications of Arlington, Inc. v. Kenley, 358 S.E.2d 722 (Va. Ct. App. 1987).
“In the present case, we reject Bio-Medical’s argument that the Commissioner erred in failing to make specific findings on all twenty factors which he is required to consider under Code § 32.1-102.3(B). While that statute requires the Commission to consider all twenty factors, it…”
— Va. Code Ann. § 32.1-102.3(B)(1) — 4 cases
— Va. Code Ann. § 32.1-102.3(B)(12) — 1 case
— Va. Code Ann. § 32.1-102.3(B)(2) — 2 cases
— Va. Code Ann. § 32.1-102.3(B)(20) — 1 case
— Va. Code Ann. § 32.1-102.3(B)(5) — 2 cases
Reston Hosp. Ctr., LLC v. Remley, 717 S.E.2d 417 (Va. Ct. App. 2011).
“Reston principally argues that it has standing to appeal under the Virginia Administrative Process Act (“VAPA”) because Code § 32.1-102.3 required the Commissioner to consider the impact that the issuance of the certificate would have on the utilization and efficiency of…”
— Va. Code Ann. § 32.1-102.3(B)(9) — 1 case
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